CASE NO.: Appeal (civil) 1999 of 2003 PETITIONER: Chandrika Prasad Yadav RESPONDENT: State of Bihar & Ors. DATE OF JUDGMENT: 05/04/2004 BENCH: CJI, S.B. Sinha & S.H. Kapadia. JUDGMENT:
J U D G M E N T
With Contempt Petition (Civil) No. 174/2003
S.B. SINHA, J:
The extent of jurisdiction of election tribunal to
direct recounting of votes is the primal question involved
in this appeal which arises out of a judgment and order
dated 18.11.2002 passed by a Division Bench of the High
Court of Judicature at Patna in L.P.A. No. 1149/2002
dismissing the appeal arising out of an order dated
7.10.2002 passed in Writ Petition marked as CWJC No.
5004/2002 whereby and whereunder a learned Single Judge of
the High Court allowed the writ petition filed by the
respondent herein questioning an order of the election
tribunal dated 20.10.2001.
BACKGROUND FACTS:
The private parties hereto contested an election for
the post of Mukhiya of Raj Gamhariya, Gram Panchayat. The
said election was held on 19.4.2001 and the votes polled
therein were counted on 20.5.2001. The contention of the
appellant was that the returning officer had informed him
that he had secured 900 votes out of which 150 had been
declared invalid and, thus, he got 670 valid votes whereas
the respondent Mahendra Rai had secured only 622 votes.
However, when the result was finally declared on 21.5.2001,
the 4th respondent herein was declared elected by securing
allegedly 32 more votes than the appellant herein. The
total votes polled by the appellant was shown as 670 and
votes polled by the 4th respondent was shown as 702.
The appellant allegedly moved an application for
recounting of votesbefore the returning officer but the same
was not entertained. The appellant thereafter filed an
election petition questioning the election of the 4th
respondent herein before the learned Munsif, Raxoul, East
Champaran primarily on the ground of irregularities in
counting of votes. Before the election tribunal, the
parties adduced their respective evidences whereafter the
learned Munsif by an order dated 20.10.2001 directed
inspection and recounting of ballot papers; pursuant to or
in furtherance whereof the Returning Officer, East Champaran
was directed to produce the ballot papers.
Aggrieved thereby and dissatisfied therewith, a writ
petition was filed by the 4th respondent herein which was,
however, withdrawn. Recounting of the ballot papers was
held on 23.3.2002 as a result whereof the appellant was said
to have secured 671 votes; whereas the 4th respondent
secured 667 votes. The Election Petition, therefore,
thereafter was allowed by a judgment and order dated
6.4.2002. The 4th respondent being aggrieved by and
dissatisfied therewith filed a writ petition before the
Patna High Court which was marked as CWJC No. 5004/2002. By
an order dated 7.10.2002, the said writ petition was allowed
whereagainst a Letters Patent Appeal was filed by the
appellant herein which was dismissed by a Division Bench of
the High Court. Hence this appeal by special leave.
SUBMISSIONS:
Mr. Amarendra Sharan, learned senior counsel appearing
on behalf of the appellant would submit that the High Court
committed a manifest error in passing the impugned judgment
purporting to rely upon or on the basis of the decision of
this Court in Ram Rati (Smt.) Vs. Saroj Devi and Others
[(1997) 6 SCC 66] wherein it has been held that it is
mandatory for the election petitioner to file an application
for recounting of votes before the returning officer in
terms of the election rules, although the same has since
been overruled by a 3-Judge Bench of this Court in Sohan Lal
Vs. Babu Gandhi and Ors. [JT 2002 (9) SC 474: (2003) 1 SCC
108].
The learned counsel would urge that as in a democracy
the rule of majority should prevail, the learned Munsif was
within his jurisdiction to direct recounting of votes upon
satisfying itself the necessity therefor and in that view of
the matter the High Court should not have interfered with
the said judgment.
Mr. Sharan would submit that the learned Munsif had
assigned valid and cogent reasons in support of his order
upon taking into consideration the pleadings of the parties
and the evidences brought on records and in that view of the
matter the High Court erred in setting aside the same.
Mr. Rakesh Dwivedi, learned senior counsel appearing on
behalf of the 4th respondent, on the other hand, would
contend that the High Court has rightly proceeded on the
premise that the pleadings of the appellant being vague and
general in nature, no case was made out for recounting of
votes. The learned counsel pointed out that prayer for
recounting of votes made by the appellant was on the basis
that he had filed a proper application before the returning
officer but he failed to prove the said fact nor brought on
the records of the case a copy thereof. As regard the
findings of the learned Munsif to the effect that the Ex.
A/20 contained cutting and over-writing, the learned counsel
would submit that no such case had been made out in the
election petition. It was pointed out that in any event
having regard to the fact that 100 valid votes had not been
counted so far as the appellant is concerned; and in fact
more than 400 votes polled by the 4th respondent herein
were held to be not valid and, thus, the appellant herein
was not prejudiced at all.
Drawing our attention to the judgment of the learned
Single Judge as also the Division Bench of the High Court,
the learned counsel would urge that the High Court analysed
the pleadings of the appellant made in his election petition
and came to the conclusion that the same are absolutely
vague and general in nature and no reliance thereupon could
have been placed by the learned Munsif. Filing of an
application before the returning officer for recounting of
votes may not be mandatory but Mr. Dwivedi would aruge that
the same goes a long way to show that as to on what basis
the recounting was sought for. The order of the returning
officer allowing or rejecting the same, the learned counsel
would contend, be of great assistance for the Election
Tribunal to judge the correctness thereof.
STATUTORY PROVISIONS:
Section 140 of the Bihar Panchayat Raj Act, 1993
mandates that the election of Mukhiya shall not be called in
question before any forum except by way of an election
petition. The State of Bihar in exercise of its power
conferred upon it under Section 121 of the said Act framed
rules known as Bihar Panchayat Election Rules. It is not in
dispute that various provisions exist as regard rejection or
acceptance of votes and the right of a candidate or his
authorised agent to question the same by filing an
appropriate application therefor before the prescribed
authority. Rule 79 of the Rules provides that the candidate
or in his absence his agent or his counting agent can file
an application to the election officer or the officer(s)
authorised by him praying for recounting and the basis
therefor. On reciept of such an application, the election
officer can accept either in whole or in part the same or
reject the same wherefor reasons are required to be
assigned. In the event of election officer accepting either
in whole or in part such a prayer of the candidate, he would
recount the votes whereafter the result or the number of
votes polled may be amended. However, no application would
be accepted for further recounting.
ANALYSIS OF REUIREMENTS OF LAW :
The law relating to recounting of votes is now well-
settled. The provisions of the Act and the rules framed
thereunder provide that in relation to an election petition
the provisions of the Code of Civil Procedure would apply.
An election petition, therefore, must contain coincise
statement of material facts. It is well-settled that the
question as to what would constitute material facts would
depend upon the facts and circumstances of each case.
We have been taken through the averments made in the
election petition. The learned Single Judge of the High
Court in his judgment dated 7.10.2002 upon noticing
paragraphs 6 to 11 and 17 of the election petition held:
“10. From the pleadings of respondent
No. 4, it is manifest that the
allegations made by him were quite vague
and did not come up to the stringent
standards laid down by the Supreme
Court.”
The appellant has not produced before us a copy of the
affidavit affirmed in support of the Election Petition to
show as to how the averments made in the Election Petition
were verified.
Our attention has also been drawn to paragraphs 19 to
21 by Mr. Sharan which read as under:
“19. That, in all 16 Booths were in the
electoral area of Gram Panchayat Raj,
Gamhariya Kala, vide Booth No. 106 to
121.
20. That, the dependent No. 1 has
wrongly been declared elected, by a
margin of 32 votes, as against the
plaintiff.
21. That, as a matter of fact, the
plaintiff has got, near about 200 excess
valid votes than the defendant No. 1.”
The averments made in the said paragraphs do not
improve the appellant’s case inasmuch as therein also no
material fact has been averred as to how and in what matter
the so-called valid votes were kept out of consideration or
invalid votes had been taken into consideration. The
appellant in paragraph 11 of the election petition
categorically stated that a request was made to the
returning officer for recounting of the votes but he did not
pay any heed thereto. In the aforementioned situation, it
was obligatory on the part of the appellant to prove the
said fact. The averments made in the election petition
clearly go to show that the appellant was aware of his right
to file an appropriate application before the returning
officer praying for a recounting. If the said application
was not entertained, he should have proved the said fact by
bringing on record the original application which was
refused to be accepted or a copy thereof. He should have
also adduced evidence in that behalf before the learned
Munsif.
In his order dated 20.10.2001, the learned Munsif held:
“In view of documentary as well as oral
evidence I find that there are
sufficient materials available on record
to show that allegation of petitioner,
about illegal reception of votes in
favour of opposite party and mischief in
preparation of result are clearly
evidence and euitch (sic) about
something hidden. In Pvt (sic) 4/12
G.P. Mahendra Rai was shown to have got
81 votes but on the very first look of
form 20(A/12) shows that 31 was made 81
and in A/13 total votes 237 was changed
into figure 287. There is no initial in
any cutting like wise in Ext. A/20
Mahendra Rai was shown to have got 509
votes but it was out (sic) and 122 votes
have been shown in favour of Mahendra
Rai. There is no initial of any officer
on this cutting too. In oral evidence
D.W.-9 and D.W.-12 have supported the
petitioner allegations.”
The learned Munsif in his order dated 20.10.2001 failed
to analyse the evidences adduced by the parties. He also
did not state as to what materials were brought on record to
show that there had been illegal reception of votes in
favour of the opposite party. Reference to Ex. 4/12 only
shows certain interpolation but whether the same had
materially affected the result or not had not been taken
into consideration.
Mr. Dwivedi is right in pointing out that whereas the
appellant could have claimed 100 more votes on the basis
thereof, 509 votes polled by the 4th respondent had been
brought down to 122 votes. There is also nothing on record
to show that as to how and in what manner D.W.-9 and D.W.-12
had supported the allegations made by the petitioner.
The learned Munsif despite having opined that an order
for inspection of ballot papers cannot be granted to support
vague pleas and not supported by material facts but failed
to point out as to which averments made by the appellant
could be accepted as disclosing material facts, on the basis
whereof an order for recounting could be passed. The said
order dated 20.10.2001 being not supported by any cogent or
valid reasons could not have been sustained.
It is well-settled that an order of recounting of votes
can be passed when the following conditions are fulfilled:
(i) A prima facie case;
(ii) Pleading of material facts stating irregularities
in counting of votes;
(iii) A roving and fishing inquiry shall not be made
while directing recounting of votes; and
(iv) An objection to the said effect has been taken
recourse to.
The requirement of maintaining the secrecy of ballot
papers must also be kept in view before a recounting can be
directed. Narrow margin of votes between the returned
candidate and the election petitioner by itself would not be
sufficient for issuing a direction for recounting.
In M. Chinnasamy Vs. K.C. Palanisamy & Ors. [2003 (10)
SCALE 103] this Court upon noticing a large number of
decisions held that it is obligatory on the part of the
Election Tribunal to arrive at a positive finding as to how
a prima facie case has been made out for issuing a direction
for recounting holding:
“Apart from the clear legal position as
laid down in several decisions, as
noticed hereinbefore, there cannot be
any doubt or dispute that only because a
recounting has been directed, it would
be held to be sacrosanct to the effect
that although in a given case the court
may find such evidence to be at variance
with the pleadings, the same must be
taken into consideration. It is now
well-settled principle of law that
evidence adduced beyond the pleadings
would not be admissible nor any evidence
can be permitted to be adduced which is
at variance with the pleadings. The
court at a later stage of the trial as
also the appellate court having regard
to the rule of pleadings would be
entitled to reject the evidence wherefor
there does not exist any pleading.”
It was further held that for the said purpose the
Tribunal must arrive at a finding that the errors are of
such magnitude which would materially affect the result of
the election. As regard standard of proof, this Court held:
“The requirement of laying foundation
in the pleadings must also be considered
having regard to the fact that the onus
to prove the allegations was on the
election petitioner. The degree of
proof for issuing a direction of
recounting of votes must be of a very
high standard and is required to be
discharged. [See Mahender Pratap vs.
Krishan Pal and Others – (2003) 1 SCC
390].
(See also Mukand Ltd. Vs. Mukand Staff & Officers
Association, JT 2004 (3) SC 474)
The order of the learned Munsif did not satisfy the
statutory requirements.
RULE 79 OF BIHAR PANCHAYAT ELECTION RULES, 1995 WHETHER
MANDATORY OR DIRECTORY
Rule 79 as noticed hereinbefore enables a candidate to
file an appropriate application for recounting of votes.
Rule 79 unlike rules framed by other States does not say
that such an application would not be maintainable after
declarations of the votes polled by the parties or prior
thereto. Such an application, therefore, can be filed at
any point of time. The very fact that Sub-rule (3) of Rule
79 provides for amendment of the result relating to the
votes polled by the respective candidates and as, such
amended result is required to be announced in the prescribed
form under Sub-rule (2) of Rule 79, the same itself is a
pointer to the fact that even after announcement of result
for recounting an application would be maintainable. It may
be true that only because such an application had not been
filed before the returning officer by itself may not
preclude the Election Tribunal to go into the question of
requirement of issuing a direction for recounting but there
cannot be any doubt whatsoever that Rule 79 serves a
salutary purpose. Counting of ballot papers in terms of the
rules takes place in presence of the candidate or his
counting agent. When an agent or a counting agent or the
candidate himself notices improper acceptance or rejection
of the ballot papers, he may bring the same to the notice of
the prescribed authority. As noticed hereinbefore, in a
given case, an application for recounting either before
announcement of the result or thereafter, would be
maintainable. Once an application is filed by an agent or a
counting agent or the candidate himself pointing out the
irregularities committed by the officers appointed for the
counting the ballot papers, immediate redressal of
grievances would be possible. As indicated hereinbefore,
while filing such an application the basis for making a
request for recounting of votes is required to be disclosed.
The returning officer is statutorily enjoined with a duty to
entertain such an application, make an inquiry and pass an
appropriate order in terms of Sub-rule (2) of Rule 79 either
accepting in whole or in part such requests or rejecting the
same wherefor he is required to assign sufficient or cogent
reasons. In the event, such an application is allowed
either in whole or in part, he is statutorily empowered to
amend the results also.
Ordinarily, thus, it is expected that the statutory
remedies provided for shall be availed of. If such an
opportunity is availed of by the Election Petitioner; he has
to state the reasons therefor. If no sufficient explanation
is furnished by the Election Petitioner as to why such
statutory remedy was not availed of, the Election Tribunal
may consider the same as one of the factors for accepting or
rejecting the prayer for recounting. An order of the
prescribed authority passed in such application would
render great assistance to the Election Tribunal in arriving
at a decision as to whether a prima facie case for issuance
of direction for recounting has been made out.
In Ram Rati (supra) a 2-Judge Bench of this Court while
interpreting Rule 76 of M.P. Panchayat Elections Rules, 1994
held:
“…In the light of the mandatory
language of Rule 76 of the Rules, it is
incumbent upon a candidate or an agent,
if the candidate was not present, to
make an application in writing and give
reasons in support thereof, while
seeking recounting. If it is not done,
then the tribunal or the court is not
empowered to direct recounting even
after adduction of evidence and
consideration of the alleged
irregularities in the counting…”
A 3-Judge Bench, however in Sohan Lal (supra) while
considering the provisions of M.P. Panchayat Raj Avam Gram
Swaraj Adhiniyam, 1993 and the Rule 80 of the Rules framed
thereunder held:
“13. In view of Section 122 and the
rules, we are unable to agree with the
ratio laid down in Ram Rati’s case. It
is not correct to hold that, in an
election petition, after the declaration
of the result, the Court or Tribunal
cannot direct recounting of votes unless
the party has first applied in writing
for recounting of votes. There is no
prohibition in the Act or under the
rules prohibiting the Court or Tribunal
to direct a recounting of the votes.
Even otherwise a party may not know that
the recounting is necessary till after
result is declared. At this stage, it
would not be possible for him to apply
for recounting to the Returning Officer.
His only remedy would be to file an
Election Petition under Section 122. In
such a case, the Court or the Tribunal
is bound to consider the plea and where
case is made out, it may direct recount
depending upon the evidence led by the
parties. In the present case, there was
obvious error in declaring the result.
We, therefore, hold that the ratio laid
down in Ram Rati’s case is not
correct.”
In Vadivelu Vs. Sundaram and Others [AIR 2000 SC 3230]
wherein this Court while considering a pari materia
provision contained in T.N. Panchayats Act, 1994 as also
upon noticing a large number of decisions observed:
“The appellant-election petitioner
could not make out a case for re-count
of votes. He filed the application for
re-count before the Returning Officer
only after the declaration of result and
that was rightly rejected by the
Returning Officer. The appellant had no
case that the illegality or
irregularity, if any, committed had
materially affected the result of the
election. Taking all the aspects into
consideration, we are of the view that
the learned Single Judge was perfectly
justified in holding that the Election
Tribunal erred in appointing a
Commissioner and ordering the re-count
of votes. The counsel for the appellant
contended that the powers of the
revisional court are not as wide as the
powers of the appellate court and,
therefore, the learned Single Judge
should not have set aside the order
passed by the Election Tribunal. We do
not find any force in this contention.
When there is error of jurisdiction or
flagrant violation of the law laid down
by this Court, by exercising the
revisional powers, the court can set
aside the order passed by the Tribunal
to do justice between the parties. The
illegality committed by the Election
Tribunal has been corrected by the
revisional order. We find no merit in
the present appeal and the same is
dismissed.”
Vadivelu (supra) was relied upon by the High Court and
in our opinion having regard to the averments made by the
appellant in his Election Petition the ratio of the said
decision applies to the fact of the present case also.
The question as to whether a statute is directory or
mandatory would not depend upon the phraseology used
therein. The principle as regard the nature of the statute
must be determined having regard to the purpose and object
the statute seeks to achieve. (See P.T. Rajan Vs. T.P.M.
Sahir and Ors., 2003 (8) SCALE 165)
CONCLUSION :
For the reasons aforementioned, we are of the opinion
that the judgment of the High Court does not call for any
interference. The appeal as also the contempt petition are
accordingly dismissed. No costs.